Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 50 (GAU)

Mustt. Hazera Khatun v. Hasmat Ali

2017-01-10

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. AR Sikdar, learned counsel for the appellant and Mr. A Alam, learned counsel for the respondents. Here the appellant is the plaintiff and the respondents are the defendants. The name of the respondent No. 7 has been struck out vide order dated 19.01.2007 passed in MC No. 2604/2006 of this court. 2. The plaintiff-appellant instituted title suit No. 23/1993 against the defendants- respondents for declaration that the judgment passed on 20.04.1989 in connection with title suit No. 37/1987 in favour of the defendants/respondents No. 1 to 4 is illegal and fraudulent and the order passed on 11.05.1993 in connection with Misc. Case No. 67/1992 in favour of the defendants/respondents No. 1 to 4 be set aside and thereafter to pass a decree for declaration of the subsisting title and confirmation of possession with perpetual injunction so that the defendants/respondents cannot dispossess the plaintiff/appellant from the subject matter of the suit as the land measuring 4 Bighas under Dag No. 326 of KP Patta No. 69 of village Dimapur under Mouja Rapasi in the district of Barpeta is a part and parcel of total land measuring 11B 15L. 3. The suit land originally belonged to Kutu Munsi and the defendants/respondents No. 5 to 7 being his daughter inherited the suit property and got their names mutated on 09.06.1992. The defendants/respondents No. 5 to 7 sold the suit land to the plaintiff appellant for valuable consideration of Rs. 25,000/- vide registered sale deed No. 253 and got delivery of possession thereon. It was further pleaded that the defendants/respondents No. 1 to 4 being the brothers of respondents No. 5 to 7 fraudulently obtained a decree in respect of the suit land on 20.04.1989 in connection with title suit No. 37/1987 against the defendants/ respondents No. 5 to 7 in the court of learned Munsiff No. 1, Barpeta ex-parte. Defendants/ respondents No. 5 to 7 filed a Misc. Case No. 67/1992 for setting aside the ex-parte decree and for restoration of title suit No. 37/1987. Ultimately, they came to a clandestine compromise and got the Misc. Case No. 67/1992 dismissed with a view to deprive the plaintiff appellant and as such the plaintiff/appellant was constrained to file the present title suit No. 23/1993 against defendants/respondents for the reliefs mentioned hereinabove. 4. Ultimately, they came to a clandestine compromise and got the Misc. Case No. 67/1992 dismissed with a view to deprive the plaintiff appellant and as such the plaintiff/appellant was constrained to file the present title suit No. 23/1993 against defendants/respondents for the reliefs mentioned hereinabove. 4. The defendants/respondents No. 1 to 4 filed joint written statement and resisted the suit both on law and facts as well as for want of cause of action. They took the plea that the suit land was collusively mutated by defendants/respondents No. 5 to 7 on the Records of Rights (ROR) and against that mutation the defendants/respondents No. 1 to 4 filed title suit No. 37/1987 in the court of learned Munsiff No. 1, Barpeta. The defendants/ respondents No. 5 to 7 did not contest the suit and as such it was decreed ex-parte on 20.04.1989. Subsequently, the defendants/ respondents No. 5 to 7 instituted Misc. Case No. 67/1992 by way of setting aside the ex-parte decree but on the date of hearing posted on 11.05.1993, the defendants/respondents No. 5 to 7 did not turn up and the case was dismissed for default. It was also pleaded that after the decree of title suit No. 37/1987 was passed against the defendants/respondents No. 5 to 7 and during the pendency of the Misc. Case No. 67/1992 though the plaintiff/appellant had purchased the suit land on 09.06.1992 by way of a registered sale deed, the plaintiff/appellant cannot get the right, title and interest on the suit land through the said registered sale deed. Accordingly, the said defendants/respondents prayed for dismissal of the suit. 5. The defendants/respondents No. 5 to 7 also filed their separate joint written statement wherein they pleaded that the suit land which was sold to the plaintiff/appellant by them was given to them by their brothers, the defendants/respondents No. 1 to 4 as a share whereafter their names were mutated. The land forming the suit land measuring 4 Bighas in the schedule of the suit was their rightful share. They had their possession thereon and sold the same to the plaintiff/appellant by way of a registered sale deed No. 253 dated 09.06.1992 and handed over the possession of the same. The land forming the suit land measuring 4 Bighas in the schedule of the suit was their rightful share. They had their possession thereon and sold the same to the plaintiff/appellant by way of a registered sale deed No. 253 dated 09.06.1992 and handed over the possession of the same. However, the defendants/ respondents No. 1 to 4 filed title suit No. 37/1987 in the court of learned Munsiff No. 1 to get the land illegally and accordingly obtained ex-parte decree on 20.04.1989 by suppressing the summons on the said defendants/respondents No. 5 to 7. Thereafter, Misc. Case No. 67/1992 was filed by the said defendants/respondents No. 5 to 7 having come to know about the ex-parte decree and the same was fixed for hearing on 11.05.1993. Before the said date, the defendants/respondents No. 1 to 4 informed them that there was no necessity of the suit and they have decided not to contest further in the suit and they would go for a compromise outside the court. Upon such information, the defendants/ respondents No. 5 to 7 did not appear in the case and subsequently came to learn that the defendants/respondents No. 1 to 4 were trying to execute the ex-parte decree dated 20.04.1989 passed in title suit No. 37/1987. Knowing the said fact, the plaintiff/appellant had instituted the suit and defendants/respondents No. 5 to 7 had no objection if the suit is decreed in favour of the plaintiff/appellant. 6. Upon the pleadings of the parties, the learned trial court framed as many as 5 issues which are quoted below:- 1. Whether there is cause of action? 2. Whether the suit is maintainable in its present form? 3. Whether the ex-parte decree passed on 20.04.1989 in connection with T.S. 37/87 was fraudulent and illegal? 4. Whether the order dated 11.05.93 passed in connection with Misc. Case No. 67/92 is liable to be set aside? 5. Whether the plaintiff is entitled to get the decree as prayed for? 7. On perusal of the case records it is found that vide order dated 21.07.1994, the plaintiff/ appellant by way of a petition No. 1194/1994 prayed for calling the case records of title suit No. 37/1987 and Misc. Case No. 67/1992 which was allowed. 8. The plaintiff respondent examined 4 witnesses and exhibited three documents. The defendant side examined 3 witnesses as DWs and exhibited two documents. Case No. 67/1992 which was allowed. 8. The plaintiff respondent examined 4 witnesses and exhibited three documents. The defendant side examined 3 witnesses as DWs and exhibited two documents. The learned trial court having heard the learned counsel for both sides and on perusal of evidence on record and the materials thereon, decided the issues No. 3, 4 and 5 against the plaintiff/appellant and as a result the suit was dismissed. 9. Against the order of dismissal of title suit by the learned trial court, the plaintiff/ appellant preferred title appeal No. 2/1996 in the court of learned District Judge, Barpeta impugning the judgment and decree dated 13.12.1995 and 15.12.1995 passed respectively in title suit No. 23/1993 by the then learned Assistant District Judge, Barpeta. The learned first appellate court took up issue No. 3 only for discussion and on the basis of its finding decided issue No. 5 against the plaintiff/ appellant thereby affirming the judgment and decree passed by the learned trial court. 10. Being aggrieved by the judgment and decree dated 01.08.2002 passed by the learned District Judge, Barpeta in title appeal No. 2/1996, the plaintiff/ appellant has preferred this second appeal which was admitted on 08.04.2003 by this court on the following substantial questions of law:- 1. Whether the question of Title of the plaintiff could be decided by the learned Lower Appellate Court, without an issue on the point? 2. Whether the documents in the case record of T.A. 37/87 could be relied upon in deciding the present suit, without the particular documents of the record of T.A. 37/87 being proved? 3. Whether the finding of the learned Courts below regarding the title to the property of the parties, namely, plaintiff vis-a-vis defendant is perverse? 4. Whether the judgments of the learned Courts below are vitiated due to non-consideration of the evidence of D.W. 5, Tahirun Nessa? 11. Mr. AR Sikdar, learned counsel for the appellant, submits that non-framing an issue on the question of title of the plaintiff was wrong on the part of the learned courts below. Further both the learned courts below committed error of law in considering the documents of case records of title suit No. 37/1987 which had vitiated the judgment and decree passed by both the learned courts below more so, when the same has not been exhibited by the plaintiff. Further both the learned courts below committed error of law in considering the documents of case records of title suit No. 37/1987 which had vitiated the judgment and decree passed by both the learned courts below more so, when the same has not been exhibited by the plaintiff. It was also pointed out that the learned first appellate court had wrongly presumed certain facts to the effect that the purchase of the defendants/respondents No. 1 to 4 of the suit land from the defendants/respondents No. 5 to 7 was earlier than the purchase of the plaintiff/appellant which goes to show that the latter purchased subject matter of the suit from the vendor cannot take away the earlier purchase and pointing out the same, Mr. Sikdar submits that the learned first appellate court never applied its mind judiciously rather the learned first appellate court was pre-determined to dismiss the first appeal. Finally, Mr. Sikdar submits that the learned courts below failed to consider the evidence of all the witnesses most specifically the DW 5 (Tahirun Nessa), the respondent/defendant No. 5 in the appeal. The substantial questions of law so formulated are to be decided in favour of the appellant/plaintiff and accordingly Mr. Sikdar submits that the second appeal involves substantial questions of law to be decided. 12. Countering the submissions of Mr. Sikdar, learned counsel for the appellant, Mr. Alam submits that the substantial questions of law so formulated have no bearing in the present case in hand and keeping in view the finality of the facts arrived at by both the learned courts below, the second appeal is liable to be dismissed. 13. Perused judgments passed by both the learned courts below, the evidence on record and considered the submission of both the learned counsel and the substantial questions of law so formulated are discussed as follows:- Substantial question of law No. 1:- Whether the question of Title of the plaintiff could be decided by the learned Lower Appellate Court, without an issue on the point? 14. The plaintiff/ appellant had come to the court seeking the reliefs primarily for setting aside the decree passed on 20.04.1989 in connection with title suit No. 37/1987 in favour of defendants/ respondents No. 1 to 4 as illegal and fraudulent and the order passed on 11.05.1993 in connection with Misc. 14. The plaintiff/ appellant had come to the court seeking the reliefs primarily for setting aside the decree passed on 20.04.1989 in connection with title suit No. 37/1987 in favour of defendants/ respondents No. 1 to 4 as illegal and fraudulent and the order passed on 11.05.1993 in connection with Misc. Case No. 62/1992 in favour of the defendants/ respondents No. 1 to 4 to be set aside and to declare her right, title and interest amongst other various reliefs. However, as seen from the judgments of both the learned courts below that there was no specific issue on the point of title of the plaintiff but from the reasoning mentioned herein below while discussing the substantial question of law No. 3 it can be decided even if there is no specific issue on the point of title of the plaintiff appellant because in order to grant the consequential relief it is the bounden duty of the court to declare the title of a particular person with respect to the suit property and only from that principal source i.e. the title, the consequential relief/reliefs would flow. In the present case in hand, the plaintiff /appellant had sought for the relief of her title to the suit property and the consequential reliefs like confirmation of possession and permanent injunction. There is no issue to the point of title so far the plaintiff/appellant is concerned. Under such circumstances, the court can decide the title, inasmuch as, the parties are well aware of the point to be proved in order to get the reliefs sought for. Now, the first appellate court had not chosen the point for determination with regard to the title of the plaintiff as required under Order XLI Rule 31 of the CPC. Rather, the learned first appellate court had chosen the issues No. 3, 4 and 5 as the point for determination as to its correctness of the findings given by the learned trial court. The point for determination as mentioned in Order XLI Rule 31 of the CPC is required to be chosen in order to reflect the arguments advanced by the appellant and the crux of the dispute between the parties to the suit. The point for determination as mentioned in Order XLI Rule 31 of the CPC is required to be chosen in order to reflect the arguments advanced by the appellant and the crux of the dispute between the parties to the suit. So, non-mentioning of the point for determination with regard to the title of the plaintiff/ appellant would clearly indicate that the same was not argued before the learned first appellate court by the appellant. But as aforesaid in order to grant the consequential reliefs as sought for by the plaintiff appellant, it is necessary to give a declaration of the title of the plaintiff appellant. Accordingly, the first appellate court has the authority to enter into the question of title of the plaintiff appellant inasmuch as the plaintiff appellant had sought for her title over the suit property. Accordingly, this question is decided in the negative. Substantial question of law No. 2:- Whether the documents in the case record of T.A. 37/87 could be relied upon in deciding the present suit, without the particular documents of the record of T.A. 37/87 being proved? 15. The cardinal principle is that it is mandatory on the part of the court to inform the parties during trial what a court wanted to relies thereby giving an opportunity to the parties of adducing evidence or address argument on the points by the person who feels aggrieved on such reliance of a particular fact. 16. Section 57 of the Indian Evidence Act, 1872 stipulates the facts of which court must take judicial notice. The principle underlying in section 57 is, for the sake of convenience, the courts are allowed to take judicial notice of certain facts specified in Section 57. The effect of judicial notice of a particular fact is that it is taken as true without offering of any evidence by the party who ought to have ordinarily done so. However, it does not mean that the party affected by such notice is not prevented from disputing the matter by evidence if it is disputable on the part of the person feeling aggrieved. 17. However, it does not mean that the party affected by such notice is not prevented from disputing the matter by evidence if it is disputable on the part of the person feeling aggrieved. 17. In the present case in hand, the records of title suit No. 37/1987 was called for by the plaintiff/ appellant and the same was allowed vide order dated 21.07.1994 but the same was not exhibited nor any specific petition and/ or order forming the part of the records of title suit No. 37/1987 was exhibited in order to show that the judgment and decree passed in title suit No. 37/1987 was vitiated by fraud. As such, the opponent had nothing to do for rebutting any such piece of evidence involving material particulars of the case records of title suit No. 37/1987. Under such circumstances, the learned courts below ought not to have taken note of any orders/ petition forming part of the records of title suit No. 37/1987. 18. In M. Narsinga Rao v. State of Andhra Pradesh, reported in AIR 2001 SC 318 , the Hon’ble Apex Court while explaining Section 3 of the Indian Evidence Act, 1872 held in paragraph 15 as follows:- “15. The word ‘proof’ need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matter s before it, the Court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word ‘proved’ in the Evidence Act. What is required is production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its have existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L. J. in Hawkins v. Powells Tillery Steam Coal Company Ltd. (1911) 1 KB 988 observed like this: “Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.” 19. Fletcher Moulton L. J. in Hawkins v. Powells Tillery Steam Coal Company Ltd. (1911) 1 KB 988 observed like this: “Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.” 19. The word ‘proof’ must be used to be understood in the sense on the basis of evidence, the admissibility of which has the sanction of law as held by the Hon’ble Apex Court. A fact is said to be proved when after considering the matters before it, the court either believes it to exist or consider its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. In reaching such conclusion, the court can use the process of inferences to be drawn from the facts produced or proved. The Hon’ble Apex Court in the aforesaid decision also explained as to what is inference and as to how the same is to be drawn of a fact from another which is reproduced herein below:- “17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.” 20. As explained by the Hon’ble Apex Court, presumption is an inference of a certain fact drawn from other proved facts and such inferences would remain until the same is either disproved or dispelled. The learned courts entered into the records of title suit No. 37/1987 on its own, inasmuch as, the same was not exhibited by the plaintiff/ appellant. As explained by the Hon’ble Apex Court, presumption is an inference of a certain fact drawn from other proved facts and such inferences would remain until the same is either disproved or dispelled. The learned courts entered into the records of title suit No. 37/1987 on its own, inasmuch as, the same was not exhibited by the plaintiff/ appellant. The learned courts below cannot draw any inference from any materials of title suit No. 37/1987, inasmuch as, the plaintiff/ appellant is totally a stranger to the title suit No. 37/1987 as she was not at all a party therein and the same was not intended to exhibit by the plaintiff appellant. Before drawing any inference from any materials of the records of title suit No. 37/1987 the learned trial court ought to have been made known to the parties before the court so that the person aggrieved could have addressed the court to any point affecting his right, title and interest. The plaintiff/ appellant who called for the said records of title suit No. 37/1987 even failed to exhibit the said records or any materials therein and that does not give authority to the learned courts below to enter into the records of title suit No. 37/1987 and give its finding in the suit filed by the plaintiff/ appellant who was totally a stranger so far title suit No. 37/1987 is concerned. Moreover, any inference drawn by a court must be on the basis of a proved fact inasmuch as the inferences itself forms a fact and if the basis of the inferences has no footing within the four corners of the Indian Evidence Act, 1872 the inference itself is shaky having no basis at all. The learned courts below has erred in taking judicial notice of the materials in case records of title suit No. 37/1987 and accordingly this substantial question of law is decided in the affirmative. Substantial question of law No. 3: Whether the finding of the learned Courts below regarding the title to the property of the parties, namely, plaintiff vis-a-vis defendant is perverse? 21. Substantial question of law No. 3: Whether the finding of the learned Courts below regarding the title to the property of the parties, namely, plaintiff vis-a-vis defendant is perverse? 21. The learned first appellate court while passing the impugned judgment came to the conclusion that from the pleadings and evidence on record it seems that the purchase of the defendants/respondents No. 1 to 4 of the suit land from the defendants/respondents No. 5 to 7 is earlier than the purchase of the plaintiff/ appellant which goes to show that the latter purchased subject matter of the suit from the vendor cannot take away the earlier purchase by the defendants/respondents No. 1 to 4 and accordingly, the learned first appellate court came to the conclusion that the learned courts below has rightly decided the issue No. 5. On the submission of Mr. Sikdar and with reference to the substantial question of law, perused the judgment passed by the learned trial court and issue with respect to the title of the plaintiff/ appellant has not been framed at all. Further, there was no finding by the learned trial court which the learned first appellate court has appreciated as referred hereinabove. Under such circumstances, the finding of the learned first appellate court is perverse, more so, until a specific issue with regard to the right, title and interest of the plaintiff has been framed, the learned first appellate court cannot conclusively give a finding merely on the presumption, inasmuch as, it is not the case of the defendants/respondents No. 1 to 4 that they had purchased the suit land from the defendants/respondents No. 5 to 7. However, the plaintiff/appellant has entered the court to get the reliefs specified in the plaint. Accordingly, she must be presumed to know what to prove in order to get a lawful title with respect to the suit land. So, even if an issue with respect to her right, title and interest is not framed, the same cannot restrain the court from declaring the right, title and interest of the plaintiff or denying the same. But in the present case in hand, the learned first appellate court purely on imagination had came to a finding which was not at all called for on the basis of the materials on record. So, the said finding is perverse and liable to be set aside. But in the present case in hand, the learned first appellate court purely on imagination had came to a finding which was not at all called for on the basis of the materials on record. So, the said finding is perverse and liable to be set aside. Accordingly, the substantial question of law No. 3 is decided in favour of the plaintiff/ appellant. Substantial question of law No. 4: Whether the judgments of the learned Courts below are vitiated due to non-consideration of the evidence of D.W. 5, Tahirun Nessa? 22. Under Order XLI Rule 31 of the CPC, the learned first appellate court has to play a responsible part in deciding the factual matrix in dispute between the parties to the suit, inasmuch as, the said first appellate court is the final court of facts and law. On perusal of the judgment of the first appellate court it is apparent that the said court failed to discuss any of the issues other than issues No. 3 and 5 and that too, never even discussed the evidence led by the parties to the suit. The learned first appellate court supported the act of taking judicial notice by the trial court and purely on the basis of presumption that the defendants/respondents No. 1 to 4 had purchased the suit land from the defendants/ respondents No. 5 to 7 gave totally a wrong finding with regard to the title of the plaintiff/ appellant. Such finding on the part of the learned first appellate court goes to show non-application of its judicial mind as required under the law and accordingly, non-consideration of the evidence on record and consideration of inadmissible evidence had clearly vitiated the findings of the courts of law. However, as the learned courts below has not entered into the evidence on record at all it cannot be answered that the learned courts below erred in non-consideration of the evidence of DW 5 (Tahirun Nessa). Accordingly, this substantial question of law is decided in the negative. 23. The finding so arrived at clearly goes to show that this second appeal succeeds and the judgment passed by the learned first appellate court is accordingly set aside and the same is remanded to the learned first appellate court for deciding title Appeal No. 2/1996 afresh keeping in view the findings and observations made hereinabove. This second appeal is accordingly allowed. 24. This second appeal is accordingly allowed. 24. Send back the lower court records. The first appellate court shall immediately on receipt of the LCRs issue notice to both the parties to this appeal informing the date for appearance of the said parties and shall make an endeavour to dispose of the title Appeal No. 2/1996 within a period of 3 months from the date of receipt of LCRs. No order as to costs.